Opinion
G063585
10-03-2024
In re the Marriage of EDGAR GONZALEZ and MARIA BANUELOS. v. MARIA BANUELOS, Respondent. EDGAR GONZALEZ, Appellant,
Westover Law Group and Andrew L. Westover for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Riverside County No. FLIN2100706, Kristi E. Hester, Judge.
Westover Law Group and Andrew L. Westover for Appellant.
No appearance for Respondent.
OPINION
SANCHEZ, J.
Appellant Edgar Gonzalez and respondent Maria Banuelos were married and have one child, a son who was two years old when this action was filed. In 2020, Banuelos was recovering from surgery, and with the encouragement of Gonzalez, she went with the child to stay with her parents in Illinois. At the time, Banuelos said it was temporary, but she later told Gonzalez that she and the child would not be returning. Gonzalez then filed a petition for dissolution and sought physical and legal custody of the child. In temporary custody orders, the trial court awarded sole physical custody to Banuelos. Subsequently, after a multiday trial, the trial court found it was in the best interest of the child to remain with Banuelos.
At times in the record, respondent is referred to as Maria Banuelos Olague, Maria Olaque Banuelos, and Maria Banuelos (Olaque), and her name is sometimes spelled "Olague" or "Olaque." As it is not clear from the record respondent's preferred name, this opinion refers to respondent as Banuelos.
On appeal, Gonzalez argues the trial court erred by allowing the child to remain with Banuelos in the temporary custody orders and erred by determining after trial that it was in the child's best interest to remain with Banuelos. Gonzalez's first argument is moot because it concerns the temporary custody orders, which were superseded by the final custody order after trial. Additionally, we conclude the trial court did not abuse its discretion following the multiday trial by concluding it was in the best interest of the child to remain with Banuelos. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Gonzalez and Banuelos, who were married, had their child in 2018. In 2020, Banuelos had surgery that required a recovery period. After discussing her recovery with Gonzalez, they brought her mother, who lived in Illinois, to California to help with her recovery. However, her mother needed to return to Illinois, and in August 2020, when Banuelos was still recovering from the surgery, Banuelos went with the child and Banuelos's mother to Illinois. Gonzalez did not have an issue with Banuelos visiting Illinois, and he purchased the tickets and drove them to the airport. Banuelos said at the time that it was temporary and she would be returning, but in early 2021, she informed Gonzalez that she would not be returning to California.
On March 25, 2021, Gonzalez filed a petition for dissolution of marriage, requesting legal and physical custody of the child, and filed a declaration under the Uniform Child Custody Jurisdiction and Enforcement Act. The next day, he filed an amended petition and amended declaration. Gonzalez also sought ex parte emergency orders regarding custody, which the trial court generally denied pending the hearing.
Gonzalez says the trial court "denied the request for an ex parte order granting him custody, but did order the child not to be removed from Riverside County." On the first page of the order, part of the page is crossed out and there is a stamp "Denied Pending Hearing[.]" On the second page, the portion that is checked that respondent "must not remove their minor children" from California, Riverside County, and Coachella Valley is not crossed out, and at the bottom of the page, the "OTHER ORDERS" box is checked and there is a stamp "Denied Pending Hearing[.]" The register of actions indicates the request for emergency orders was denied. Thus, there is some ambiguity as to whether the trial court denied the entirety of the requested temporary emergency orders or granted the temporary emergency order to not remove the child from California, Riverside County, and Coachella Valley. However, we need not resolve this issue as it does not impact the outcome of this appeal, and thus, we will assume for purposes of this opinion that Gonzalez is correct that the trial court ordered the child not to be removed from California, Riverside County, and Coachella Valley.
On May 17, 2021, the trial court held a hearing. Both parties and their respective counsel appeared telephonically, argument was presented by each counsel, and the trial court continued the hearing to June 10, 2021. No reporter's transcript was provided on appeal for this hearing.
On June 10, 2021, the trial court held the next hearing (again, no reporter's transcript was provided on appeal for this hearing). It authorized a 730/3111 evaluation and made "[t]emporary [f]amily [l]aw [o]rder(s)," awarding joint legal custody to Banuelos and Gonzalez, sole physical custody to Banuelos, and visitation to Gonzalez.
On July 7, 2021, the trial court held another hearing and ruled, among other things, Gonzalez was to have his visitation with the child in Illinois, pending further order of the court. The trial court also appointed Dr. Kim Shirin as the child custody evaluator.
On October 25, 2022, trial began and was held over six different days. Gonzalez and Banuelos testified, as well as Gonzalez's sister, Gonzalez's aunt, Gonzalez's cousin, Banuelos's brother, and Banuelos's mother. Dr. Shirin also testified and recommended Gonzalez to have physical custody and Banuelos to have visitation, but if Banuelos moved back to the area, there was no reason there could not be some type of even sharing of custody.
Dr. Shirin's report was admitted into evidence.
After hearing closing arguments, the trial court stated, among other things, it "believe[s] you both to be good parents[,]" and it thought "you both love [the child] very much" and the child "loves you both very much." The trial court noted it did "not agree with the way in which Ms. Banuelos moved to Illinois" and, "[b]ecause of the way that was handled, there was an extended period of time where Mr. Gonzalez was not provided the opportunity to have an active role in [the child's] life." However, the trial court recognized, when Banuelos initially "left to move to Illinois, she did so not just with the consent of Mr. Gonzalez but with his encouragement."
The trial court further stated, while it understood how Dr. Shirin reached his conclusions, it disagreed with some of Dr. Shirin's conclusions and would not adopt his recommendation. For example, the trial court noted Dr. Shirin's report discussed the difference in the relationship between the child and Gonzalez and the child and Banuelos, but the trial court found Dr. Shirin's report did not include much discussion on how that demeanor was impacted by the fact that the child had only spent short periods of time with Gonzalez as opposed to longer interactions with Banuelos.
The trial court concluded it was in the best interest of the child to remain with Banuelos and detailed, among other things, a schedule for who the child would be with at certain times (e.g., summer). The trial court asked counsel for Banuelos to prepare the findings and order.
On January 10, 2023, the trial court entered its Findings and Order After Hearing (FOAH). The FOAH stated it was in the best interest of the child to remain with Banuelos. The FOAH awarded joint legal and joint physical custody to Banuelos and Gonzalez, and it made certain other rulings related to who would have the child at certain times, communication, and the sharing of information. For example, the FOAH noted Gonzalez shall spend as much time with the child as possible; when he travels to Illinois and provides at least 10 days' notice, he may have custody of the child in Illinois; and he will have the child every summer (starting one week after school ends until one week before school begins, or a six-week consecutive period if there is not a traditional school break schedule). Gonzalez timely appealed from the FOAH.
It is not clear from the record on appeal what happened to the dissolution of Gonzalez and Banuelos's marriage. However, under the circumstances here, we consider the FOAH to be appealable as "a final order . . . in a bifurcated proceeding regarding child custody or visitation rights." (Code Civ. Proc., § 904.1, subd. (a)(14).) Although the trial court did not expressly call the trial a bifurcated proceeding, it is clear that the FOAH was a final order on custody and the trial can be construed as a bifurcated proceeding.
DISCUSSION
On appeal, Gonzalez argues (1) the trial court erred by permitting the child to remain in Illinois in its temporary custody orders, which created the status quo that the trial court supposedly later relied on, and (2) substantial evidence did not support the trial court's decision to disagree with Dr. Shirin's recommendation. We conclude these arguments are unavailing.
"[W]e do not treat [Banuelos's] failure to file a respondent's brief as a 'default' (i.e., an admission of error) but independently examine the record and reverse only if prejudicial error is found." (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1203.)
I. THE TEMPORARY CUSTODY ORDERS
As an initial matter, Gonzalez appears to argue the trial court's temporary custody orders were not actually temporary and should have been appealable. But to the extent Gonzalez is making such an argument, it is unclear what relief Gonzalez is seeking because, if the temporary custody orders had been appealable, the current appeal would be untimely as to the temporary custody orders. (See In re Marriage of Weiss (1996) 42 Cal.App.4th 106, 119 [concluding "immediately appealable pendente lite attorney fees orders" were final and binding because party failed to timely appeal from them].)
In any event, Gonzalez is incorrect: the temporary custody orders were temporary and not appealable. The trial court expressly stated its orders were "[t]emporary", and the facts plainly support that these were temporary custody orders as the trial court went on to hold a multiday trial on custody before issuing the FOAH. That the temporary custody orders provided for a status quo at the time of the child remaining in Illinois does not make them final; if that were the case, then essentially any temporary custody order giving sole physical custody to one parent would be a final custody order. We also disagree with Gonzalez's suggestion that case law holding that temporary custody orders are not appealable is no longer valid. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 557-565 (Lester); Banning v. Newdow (2004) 119 Cal.App.4th 438, 456.)
Additionally, Gonzalez contends the trial court erred by not holding a trial before issuing the temporary custody orders. Gonzalez cites Andrew V. v. Superior Court (2015) 234 Cal.App.4th 103 (Andrew V.), which recognized "[a] meaningful hearing is a critical requirement of California law before any judicial determination regarding an out-of-state move-away request for parents who, as here, share joint legal and physical custody following a final judicial custody order" and "[a] full adversarial hearing must precede, not follow, any out-of-state move-away order, however denominated." (Id. at pp. 105, 107.) According to Gonzalez, Andrew V. left a "loophole" and should be clarified so that it applies here, where the trial court supposedly "effectively granted [Banuelos] a relocation, without trial, thus establishing a new status quo for the child."
Gonzalez does not say what evidence he wanted, but was unable, to present in the trial court before the temporary custody orders. The record on appeal reflects that the trial court held two hearings before issuing the temporary custody orders. Additionally, Andrew V. was a different procedural context where there already was a final custody order and the mother was seeking an order to allow her to move away with the children, but here, there was no final custody order yet and Banuelos and the child were already in Illinois when this action was filed. (Andrew V., supra, 234 Cal.App.4th at p. 106.) However, we need not resolve how Andrew V. may apply here because the issue is moot.
"'An appellate court will not review questions which are moot and which are only of academic importance.' [Citations.] A question becomes moot when, pending an appeal from a judgment of a trial court, events transpire which prevent the appellate court from granting any effectual relief." (Lester, supra, 84 Cal.App.4th at p. 566.) Here, Gonzalez attempts to dispute the temporary custody orders allowing the child to remain in Illinois, but reversing the temporary custody orders would not provide relief because they are no longer in effect and have been superseded by the FOAH. As Lester explained, "we cannot turn back the clock and restore the custody situation that existed before the orders were made[,]" and "[w]ith the best interests of the child in mind [citation], we cannot undo bonds that were formed or stability that was created by the temporary orders." (Ibid.) Thus, the alleged error in the temporary custody orders is moot.
Finally, we note Gonzalez was not without options if he believed that the temporary custody orders were in error. "So far as [Gonzalez] contends that the temporary orders caused him irreparable harm in the later course of the litigation by creating an unjust status quo which the trial court felt bound to preserve, we note that the normal remedy where a party fears irreparable harm from an interlocutory order is writ review[.]" (Lester, supra, 84 Cal.App.4th at p. 566.) But the record on appeal does not reflect that Gonzalez pursued writ review, which is "the remedy which law and policy compel as to temporary custody orders." (Ibid.) Indeed, in Andrew V., the father had filed a petition for writ of mandate and request for immediate stay. (Andrew V., supra, 234 Cal.App.4th 103, 107.)
II. THE FINAL CUSTODY ORDER
"In an initial custody determination, the trial court has 'the widest discretion to choose a parenting plan that is in the best interest of the child.' [Citation.] It must look to all the circumstances bearing on the best interest of the minor child." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32 (Burgess).) "When determining the best interest of the child, relevant factors include the health, safety and welfare of the child, any history of abuse by one parent against the child or the other parent, and the nature and amount of contact with the parents." (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255; see also Fam. Code, §§ 3011, 3040.)
"The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked." (Burgess, supra, 13 Cal.4th at p. 32.) Additionally, "[t]he trial court's factual findings are reviewed for substantial evidence, in the light most favorable to the judgment." (S.Y. v. Superior Court (2018) 29 Cal.App.5th 324, 334.)
The record on appeal does not reflect that Gonzalez requested a statement of decision. "'A party's failure to request a statement of decision when one is available has two consequences. First, the party waives any objection to the trial court's failure to make all findings necessary to support its decision. Second, the appellate court applies the doctrine of implied findings and presumes the trial court made all necessary findings supported by substantial evidence. [Citations.]'" (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 996.)
Here, under the deferential standard of review, the trial court reasonably concluded it was in the best interest of the child to remain with Banuelos in Illinois and for the child to be with Gonzalez during the times specified in the FOAH. The trial court heard extensive testimony over the multiday trial and there was substantial evidence supporting the trial court's conclusion, including for the factors of the child's health, safety, and welfare. For example, Banuelos provided testimony about the child's typical routine in Illinois. Banuelos also testified her plans moving forward included focusing on the child receiving a good education and having good communication with both Gonzalez and her. The child also has a doctor and dentist in Illinois. Banuelos's mother testified that the child's day is good and she has not seen Banuelos acting in any way that she disagrees with regarding the child.
Moreover, Banuelos confirmed during her testimony she would share the child with Gonzalez and comply with any of the court's orders. Banuelos also confirmed, if the child stays in her custody, it was her intention to make arrangements for the child to consistently spend time with Gonzalez. Substantial evidence supported that Banuelos would facilitate the child seeing and communicating with Gonzalez.
Gonzalez asserts the trial court "rel[ied] primarily" on the status quo (i.e., the child living in Illinois with Banuelos) to reject Dr. Shirin's recommendation. Gonzalez does not cite the record for this claim, nor does the record reflect that the trial court relied primarily on the status quo. In any event, the trial court could consider the fact that the child had lived primarily with Banuelos in Illinois for more than two years by the time of the trial. (See Burgess, supra, 13 Cal.4th at pp. 32-33 ["the paramount need for continuity and stability in custody arrangements-and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker-weigh heavily in favor of maintaining ongoing custody arrangements"].)
Gonzalez's primary argument is that substantial evidence did not support the trial court's disagreement with Dr. Shirin's recommendation. However, the record reflects that the trial court carefully considered Dr. Shirin's testimony and report but ultimately concluded it would not adopt the recommendation. At most, Dr. Shirin's testimony (and other evidence for Gonzalez) could have supported a different conclusion, but "'"'[w]hen two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.'"'" (In re Caden C. (2021) 11 Cal.5th 614, 641.) The question on this appeal is not whether substantial evidence also supported Dr. Shirin's recommendation and the trial court reasonably could have followed the recommendation, but instead, whether the trial court reasonably concluded that the child remaining with Banuelos in Illinois advanced the child's best interest. (See Burgess, supra, 13 Cal.4th at p. 32.) And as discussed, the trial court reasonably made that conclusion.
While Gonzalez claims that Dr. Shirin's analysis of factors was not "seriously challenged[,]" Gonzalez ignores conflicting evidence that was presented in the trial court. For example, Dr. Shirin testified that the "primary" factor for his analysis was who was going to be the best host for coparenting and facilitating the other parent's involvement, which he did not believe was Banuelos. However, Gonzalez's testimony and Banuelos's testimony at trial offered conflicting accounts regarding Gonzalez's ability to communicate with the child while the child was with Banuelos. As the trial court noted regarding the dispute over phone calls, "this wasn't about not making [the child] available for dad" and, instead, "[i]t was the times that dad was calling at times she was at work or she was unavailable, but those calls were returned. Sometimes the same day. Sometimes the next day, but it sounds like efforts were made to return the calls." Banuelos also testified she would follow court orders and intends to make arrangements for the child to consistently spend time with Gonzalez.
In sum, based on this record, we cannot conclude the trial court abused its discretion in not agreeing with Dr. Shirin's recommendation.
DISPOSITION
The FOAH is affirmed. No appellate costs are awarded because respondent did not appear.
WE CONCUR: GOETHALS, ACTING P. J. MOTOIKE, J.